MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 April 2000
	DOCKET NUMBER:   AR2000035102

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that blocks 4a and 4b of her DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected to show her rank as corporal and her grade as E-4.

APPLICANT STATES:  The applicant indicates that her rank should have been listed on the DD Form 214 as corporal/E-4 (CPL), and submits the following documents in support of her claim:  a Memorandum, Subject-Additional Duty Appointment with an effective date of 4 March 1995; Orders Number 105-5, dated 24 June 1996, issued by the Military Entrance Processing Station (MEPS), Seattle, Washington; Order Number 1329-21, dated 25 November 1997, issued by Headquarters III Corps, Fort Hood, Texas, which ordered the applicant’s permanent change of station and showed her rank as CPL; and a Memorandum, dated 26 March 1999, from the Chief of the Military Personnel Division at Fort Monmouth, New Jersey, which indicated that there was no record of the applicant’s lateral appointment from CPL to specialist/E-4 (SP4).

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty on 14 August 1992 and served continuously until 19 May 1999, when she was separated for misconduct with a general, under honorable conditions discharge.  At the time of her separation she had completed 6 years, 9 months, and 6 days of active military service.  

The applicant’s Personnel Qualification Records (PQR) (Department of the Army Forms 2 and 2-1) were not available to this Board for review.  However, the evidence of record does include a separation packet, which contains the complete facts and circumstances surrounding the events which led to the applicant’s discharge, minus the PQR.  

The applicant’s disciplinary history includes her acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions.  The first on 18 August 1998 for adultery and the second on 17 March 1999 for wrongfully and willfully impersonating a noncommissioned officer, which resulted in her reduction to the rank of private first class/E-3 (PFC). 

On 24 March 1999, the Chief of the Military Personnel Division at Fort Monmouth, New Jersey, prepared a Memorandum, which indicated that there was no record of the applicant’s lateral appointment from CPL to SP4.  It concluded that the applicant should have been entitled to wear the rank of CPL.  

On 25 March 1999, the applicant’s appeal, of the 17 March 1999 NJP, was reviewed by a Judge Advocate (JA).  After careful consideration of all matters presented, the JA denied the applicant’s appeal.  The findings indicated that the NJP proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense. 

In April 1999, the applicant’s unit commander notified the applicant of the intent to initiate separation action on her based on a pattern of misconduct.  This packet was prepared with the applicant’s rank designated and listed as PFC.

In the separation notification to the applicant, the commander specifically cited the following reasons for initiating the separation action: her receipt of a parking ticket, her record of NJP; a Letter of Concern, issued to her for not providing constant supervision to her 4 year old child; and several counseling sessions for writing bad checks. 

On 12 April 1999, the applicant acknowledged receipt of the commander’s notification of intent to initiate the separation action.  In her acknowledgement, she stated she was entitled to consult counsel; however, she elected to waive that right.  At this time, she also completed her election of rights by waiving the following rights:  to have her case considered by an administrative separation board; to personally appear before an administrative separation board; and to consult counsel.  In addition, she elected not to submit a statement of rebuttal in her own behalf.

On 5 May 1999, the appropriate authority approved the separation action on the applicant and directed that she be issued a general, under honorable conditions discharge (GD).  Accordingly, on 19 May 1999, the applicant was discharged after completing 6 years, 9 months, and 6 days of active military service.  

The evidence of record includes a DD Form 214 issued to and signed by the applicant at discharge.  This document certifies that the applicant was separated with a GD by reason of misconduct.  It also verifies that she held the rank of PFC on the date of her discharge. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes the policy and prescribes the procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  It also indicates that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Notwithstanding the contentions of the applicant and the supporting documents she submitted with her application, the Board determined that her rank was correct on the date of her discharge.  

2.  The Board found the argument, made by the Chief of the Military Personnel Division that there was no record of a lateral appointment pertaining to the applicant in her record and she was legally correct to wear the rank of CPL, was not persuasive.  This position was not upheld by proper legal authority during the NJP appeal process review by the JA who had access to all the information.  Therefore, lacking evidence to the contrary, the Board found this factor did not provide a sufficient basis to grant relief.  

3.  The record shows that the 17 March 1999 NJP proceedings against the applicant and the discharge process were accomplished in accordance with applicable laws and regulations.  Therefore, the Board determined that the applicant’s reduction to the rank to PFC and subsequent discharge in that grade was appropriate.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rgh__  __jps____  ___be___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR200005102	
SUFFIX		
RECON		
DATE BOARDED	2000/04/12	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1999/05/19	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 224	112.0200	
2.		
3.		
4.		
5.		
6.